The practice of law clerks sometimes known as scriveners at least until the 19th century was to charge for legal documents in particular conveyances by the word.

The justification for this practice was that detailed legal documents were more likely to be valuable to the clients than concise ones. Whilst some clients appear to have accepted this explanation there were more sceptical individuals who thought that the real consideration was cost rather than value.

Reading many judgments today you could be forgiven for thinking that lawyers have sought to persuade their clients that the more cases that are cited the better value provided.

While Judges make occasional adverse comments about excessive citation of authority in practical terms they seem to acquiesce in this approach.

Whilst precedent is clearly required the excessive use of authorities creates a position which I think now is clearly evident of the law becoming inwardly and backwardly focussed. Judgment s suffer from analysis paralysis rather than providing practical guidance .Traditionally it was said that one of the strengths of the common law was its appreciation of the context in which the dispute had arisen. This quality appears to have diminished and been replaced by an assumption that a line of authorities establish sufficient wisdom to resolve a case. I have referred to this elsewhere as applying 19th century solutions to 21st century problems.

A good example of the determination through essentially slugging it out by trading authorities is the Tate Modern case Fearn & Others v The Board of Trustees of the Tate Gallery which was eventually determined by the Supreme Court in 2021.

The facts of this case are well known and can be simply stated. The Tate Modern Gallery was created by the conversion of the Bankside Power Station. At the top of the building there was what was described as a viewing gallery with the aim of giving visitors the opportunity to have a panoramic view of the City of London. This it did but it also gave the thousands of visitors the opportunity to stare directly into flats in an adjoining block. These flats had been constructed with walls made largely of glass. According to the first Judge to consider the case Mr Justice Mann this created ‘a clear and uninterrupted view’ of all the occupants’ activities in the flat.

The flat occupiers brought a claim in private nuisance. They acknowledged that residents in a densely populated area could expect to be overlooked by their neighbours to some extent. However, they argued that creating a gallery which enabled thousands of people to do so crossed a line in terms of what was reasonably acceptable.

Nuisance is a long-established tort with there being many authorities. I am not going to pick my way through them but simply describe the extent of the same in the various judgments.

The first judgment of Mr Justice Mann ran to 233 paragraphs with 37 authorities cited. The claims were dismissed.

The Claimants appealed to the Court of Appeal. The Court of Appeal judgment is 102 paragraphs long with 54 authorities cited. The Court of Appeal upheld the judgment dismissing the claims but gave different reasons for doing so.

The Supreme Court by majority decided in favour of the Claimants. Lord Leggatt gave the majority judgment with which two other members of the Court agreed. Lord Sales gave a dissenting judgment with which one other member agreed. The judgments ran to 283 paragraphs. By this stage over 70 authorities were cited the first being in the year 1752.

As Lord Leggatt was disagreeing with both Mr Justice Mann and the Court of Appeal but these Judges had given different reasons Lord Leggatt had to indicate why he disagreed with each approach. Lord Sales who would have dismissed the claims explained why he agreed with the judgment of Mr Justice Mann but not that of the Court of Appeal.

It is reasonable to state that the net effect of these 618 paragraphs and over 70 authorities cited would be that if the particular circumstances of this claim were precisely replicated the answer could be established. However, the possibility of a precise replication is so remote that this is scarcely relevant. In practical terms the extensive judgments and references to authorities will provide plenty of scope for similar exercises in future cases.

Ultimately the question is what is reasonable in this urban context. As Lord Leggatt points out the question of reasonableness cannot be approached in a simply impressionistic or intuitive way. There has to be some form of guidance or principle so as to make the law predicable. However, on the facts of the case I believe it would have been relatively easy to distil principles which would not require intricate analysis of authorities. I would suggest the following.

First how unusual or unexpected is the Defendant’s activity? I would say very. Erecting a gallery which permits thousands of people to gaze directly into your home is not in any way usual or expected.

How unexpected or unreasonable was the Claimant’s use of their own property? This is arguable to the extent that the construction involving glass walls increased the degree of intrusion. However, I would say this is a fairly marginal consideration as it goes to exacerbation of the intrusion as opposed to creating it.

Thirdly how significant is the Defendant’s conduct in relation to the Claimant’s enjoyment of their properties? I would say very significant. In practical terms they were being observed by many people for long periods of the day.

So I would agree with Lord Leggatt that this is a straight forward case of nuisance. It does appear that there was a rather long and convoluted process to reach this straight forward conclusion.